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Monarch Chem. Works, Inc. v. Exon

ELR Citation: 9 ELR 20478
Nos. No. 77-0-393, 466 F. Supp. 639/11 ERC 1933/(D. Neb., 02/12/1979) Injunction vacated

The court vacates an injunction against completion of an urban renewal project, finding that defendants have brought their conduct into compliance with the requirements of the National Environmental Policy Act (NEPA). In a previous decision, 8 ELR 20727, the court ruled that defendants had violated the Act by failing to revise the environmental impact statement (EIS) for the project to reflect the planned addition of a correctional facility or, in the alternative, to create a written record explaining the basis of their decision that revision of the EIS was unnecessary. Noting that for projects such as this the Federal Housing and Community Development Act assigns full responsibility for satisfying NEPA's requirements to the municipality sponsoring the project, the court examines the revised environmental record prepared by the agency in light of the "reasonableness" standard of review. As to the standard of review, the court notes that a plaintiff has the initial burden of showing the existence of substantial environmental issues which should be addressed within an EIS. If the plaintiff meets this burden, the defendant must then marshal sufficient proof to show that an EIS is not required, and the reviewing court may consider evidence outside the record. The court rules that the EIS for the project was not deficient for failure to consider the alternative of inclusion of the correctional facility in the urban renewal area. No discussion of this alternative was required under the Act because the EIS had been completed substantially prior to the time at which plans to construct the correctional facility became reasonably certain. The municipal agency was, however, still subject to the requirement of §102(2)(E) of NEPA, which imposes a broader duty to consider alternatives, including the duty to consider alternatives which may be outside the independent authority of the agency.The court finds that under the unique facts of this case, in which full responsibility for planning and constructing the correctional facility rested on the state and not the city, the latter was not obligated to assess this alternative. As to the substantive content of the agency's negative determination, the court finds that the document is not inadequate for failure to include a formal cost-benefit analysis for the project. In addition, the document addresses sufficiently the direct environmental impacts of the project. As to the secondary or indirect impacts, such as changes in population density and traffic patterns, the court rules that such effects need not have been addressed because this is not required where the direct project effects are not of a magnitude requiring the preparation of an EIS. In the alternative, the court holds that the document adequately addressed such effects. Finally, the court rejects plaintiff's challenge to the failure of the negative determination to consider the impact of the surrounding environment on the project, holding that this is a novel interpretation of the Act which the court declines to adopt.

Counsel for Plaintiff
Annette E. Mason, Bruce G. Mason
Ross & O'Connor
711 First Nat'l Bank Bldg., 1603 Farnum, Omaha NE 68102
(402) 344-0570

Counsel for State Defendants
Gary R. Welch, Ass't Attorney General
2115 State Capitol, Lincoln NE 68509
(402) 471-2682

Counsel for City Defendants
James E. Fellows, Patrick W. Kennison, Ass't City Attorneys
Omaha-Douglas Civic Center, 1819 Farnum, Omaha NE 68102
(402) 444-5115